Report on Toronto’s Natural Garden Exemption Process

An open letter to Toronto Councilors:
Following the January 10, 2012 meeting of the Etobicoke-York Community Council, Councillor Frances Nunziata requested a report on several aspects of Toronto’s Natural Garden Exemption process. A great deal of misinformation about “natural” gardens has been disseminated in recent years and we would like to take this opportunity to provide our own report, attached, on the subject.

Municipal bylaws are neither designed nor empowered to regulate aesthetics nor is it the province of Councillors or staff to decide whether or not an individual garden is appropriately designed or contains acceptable plants beyond whatever species have been officially designated as “local” or “noxious” weeds (see Appendix A). Bylaws are enacted to ensure that minimal health and safety standards are set for the protection of the public and they must be as unintrusive on individual rights as possible. To quote the Licensing & Standards Committee’s own webpage: “[its] primary focus is consumer safety and protection, with a mandate to monitor, and make recommendations on the licensing of business and enforcement of property standards.”

“Natural” gardens presumably include a subset of yards that differ from those filled with plastic flamingo’s, painted gnomes, plundered river rock, alien turf grasses, or concrete parking pads. The yards that come into question under this “exemption” policy generally fall into two distinct groups: those that are part of abandoned or derelict properties, some of which may in fact violate health and safety standards; and those that are tended but differ in appearance from the garden style made popular by the 1950’s Ozzie and Harriet show. It is the latter category that most often apply for an exemption, creating the mistaken impression that ecological gardening is somehow improper.

Toronto staff and Council seem to increasingly be viewing gardens through the lens of a gated-community association, where the goal is to create as much uniformity as possible…in the outside appearance of the homes and presumably in the occupants of those residences. This is very much counter to the view that the world holds of Toronto, one in which diversity is prized. Biodiversity should be no less valued than cultural diversity especially as the rest of the world in- creasingly embraces its natural heritage as a primary defence against the impacts of climate change. It is time to allow Toronto gardens to move out of the past in order to help to protect the future.
Sincerely,
Toronto Conservation Gardeners

Summary
• there are fewer than two dozen plant species governed under the Ontario Weed Act, and by extension, Toronto bylaw 489, yet the bylaw is applied against a much wider array of species which can be readily found in virtually any gar- den or public space.
• the current appeals process asks residents to apply for exemption from a bylaw of which they are not in violation. If such a violation existed (e.g presence of noxious weeds or un-mown lawn) no exemption would be granted; if no such violation exists, the application process is unnecessary.
• garden design is the Charter-protected right of the resident, not the province of neighbours nor of Council and most certainly not that of individual bylaw inspectors.
• the Charter protected right to plant in accordance with environmental principles…on both private land and on the city-owned verge has already been affirmed by the Courts.
• the City was warned in 1996 that the current bylaw 489 would likely not withstand a constitutional challenge, and that challenge has now been launched.
• it is incumbent on elected officials to act to protect the rights of residents regardless of their personal viewpoint of garden aesthetics.
• it is not the role of Council to gather support against ecological gardens, but it should be its role to celebrate, encourage, and support those who choose to act on global environmental issues starting in their own yards.
• unless a garden poses a health and safety risk, it cannot be governed by the city any more than the City can impose standards on a resident’s choice of religion, on the colour they choose to paint their homes, or how they choose to live their lives within those homes.

Next Steps for a Progressive City
• eliminate the counter-productive “natural garden exemption” process in favour of prosecuting only those properties that actually offer valid health and safety concerns.
• train bylaw enforcement staff to recognize the few prohibited plant species and to recognize the difference between unmown lawns and bio-diverse gardens.
• work to educate residents and staff about the importance of biodiversity and the need to accept a more sustainable and ecological approach to yards.
• work to educate residents and staff about the environmental dangers of invasive alien species commonly sold and traded and consider adding some of those to Toronto’s officially designated “local weeds” list.
• promote the replacement of alien, especially those already deemed invasive, species with native plants in private and public lands.
• replace City plantings of invasive species in parks and streets with regionally native species of local genotype.
• promote local businesses and organizations that sell ethically propagated, locally native, species rather than purchasing from out-of-province suppliers based purely on the lowest bid.
• prohibit the sale and propagation of invasive species.
• implement the recommendations of the City’s Green Plan, Wet Weather Flow Master Plan, and numerous other documents promoted by the City that advocate these steps.

Natural Gardens
Toronto has offered no specific definition of “natural” gardens but the term appears to be generally used in cases where residents have chosen to use vegetation other than turf grass in their yards. Turf grasses it should be noted are primarily alien species, most originating in Eurasia. Toronto’s Health Department has stated that Kentucky Blue Grass, a popular Eurasian turf grass is among the worst known plant allergens.

It is assumed that the term “natural” was intended to encompass “ecological or ecologically-oriented” gardens…a style that is not only not illegal, but one that is actively encouraged by various Toronto Departments, Plans, and Policies (eg. Parks & Recreation Dept., Wet Weather Storm Water Management Plan, Toronto Green Plan etc).

The benefits provided by ecological gardens extend far beyond their boundaries. Their implementation in residential properties acts to substantially decrease City costs related to water treatment and supply, storm-water management, yard waste collection, improves air quality, and increases the environmental health of the communities in which they are situated. Front yard gardens, particularly those encompassing the adjacent boulevard, have also been cited as calm- ing traffic; increasing social interactions between neighbours; and improving the overall well being of residents. By providing habitat for pollinators, eco-gardens aid in the fertilization of flowering plants beyond the gardens in question and provide a source of protein for the young of increasingly stressed songbird populations.

Obviously individual gardens cannot begin to make up for the great loss in natural areas consumed by urban expansion. In combination with one another, however, they can create much needed linkages between the natural areas that remain and provide miniature safe zones for increasingly threatened urban wildlife, including native pollinators which are essential for the health of even non-native crops. It is incumbent upon Toronto to join the growing ranks of munici- palities that support and encourage such gardens.

Toronto Bylaw 489: “Tall Grass and Weeds”
Although a number of bylaws have been used to prosecute residents who choose non-standard landscapes, only Bylaw 489 allows those charged to apply for an exemption. This would appear to mean that residents making such an application, are requesting permission to grow lawn in excess of 8 inches (20 cm) in height and/or allow noxious weeds to be present. In practise, neither would be allowed. This bylaw is enforced only on private properties, not public lands.

The “exemption” appears to be simply a mechanism of imposing the personal aesthetic preferences of various Councillors and staff on privately held lands. Only a very few Staff Reports actually note the presence of any noxious weeds, and those may include as few as a single stalk, easily found in virtually any garden and in most parks and public lands. The term “managed”, moreover, seems to have been re-interpreted as “manicured”… a state of precision that is antithetical to the term “natural”. Actual health and safety issues are seldom, if ever, brought to light by these reports.

A 2012 addition to violation notices issued under this bylaw threatens the recipient with costs of $94 for the first hour plus $55/hour or part thereof for any additional inspections required if “compliance” is not achieved within a specified time period, usually within a few days of mailing of the notice. Given that the description of the violation is deliberately vague, such compliance is virtually impossible to achieve without a meeting with the inspector.

The bylaw reads in part:489-2. Maximum height.A. The owner or occupant of private land shall cut the grass and weeds on their land and remove the cuttings whenever the growth of grass and weeds exceeds 20 centimeters in height. B. For the purposes of this section, the term “grass and weeds” refers to: (1) All noxious weeds and local weeds designated under the Weed Control Act2; and(2) Any other vegetation growth that does not form part of a natural garden that has been deliberately implemented to produce ground cover, including one or more species of wildflowers, shrubs, perennials, grasses or combinations of them, whether native or non-native, consistent with a managed and natural landscape other than regularly mown grass.
E. Review of notice. (1) A notice, including notice by placard, given or placed under this section shall contain the statement that the owner or occupant may, upon the receipt of notice under this section, request that the issuance of the notice be reviewed by the community council on the basis that the growth is exempt as a natural garden.
2 Editor’s Note: See R.S.O. 1990, c. W.5.

City lawyers have construed the bylaw to prohibit any vegetation in excess of 8 inches, meaning that should staff be so inclined, a standard garden of Japanese honeysuckle, periwinkle, goutweed, and other familiar, but harmful, invasive, and alien, vegetation could be charged under the bylaw; yet, presumably because these plants are recognized by MLS Officers, such gardens are left unmolested. In actuality it would be virtually impossible for any garden, regardless of how manicured, to “pass” these arbitrary inspections.

It also means that residents who comply with City missives to leave grass clippings on their lawns are in violation…a construct questioned by the Reverend Edward Koroway of the St Marks Catholic Church charged under the bylaw in June 2008.

An Advisory Notice to inform residents that a complaint has been received is sent before any investigation has taken place and does not include any mention of the exemption process. That process is, apparently, included in subsequent Violation Notices/Work Orders sent via registered mail, which are returned to the City should no one be available to receive it. Additional efforts are not made to notify the resident should that mailing be returned by Canada Post as un- deliverable. See example in Appendix B

The Ontario Weed Act
The Ontario Weed Act currently lists twenty-four species of noxious weeds (Appendix A). That Act is enforceable only where such weeds may impact agricultural or horticultural operations. The Weed Act authorizes the destruction only of noxious or locally designated weeds, not surrounding vegetation. Toronto has officially designated only Purple Loosestrife as a Local Weed.

Common milkweed is specifically exempted under the Act in urban areas due to its crucial role in the lifecycle of the monarch butterfly, a species denoted as being “of special concern” under Federal and Provincial Species at Risk Acts.

In 1998 the City issued a press release stating that complaints against goldenrod (a native species not listed in the Act) would not be accepted as it is a highly beneficial plant and an essential fuel for migrating Monarch butterfly.

The Proposal made by Councillor Nunziata to the Licensing & Standards CommitteeRecommendation 1 The feasibility of providing notification to area residents when a request for a Natural Garden Exemption is to be considered by Community Council and criteria as to who should be notified.
The rationale listed in the January 25, 2012 report for this proposal is that:
“a neighbour, who may have issue with the current state of the lands but was not the one to formally report this to the City would not be aware of the exemption request and consequently would not have an opportunity to submit comments to the Community Council for consideration.“

Garden design is not subject to community approval nor should decisions about health and safety matters (the stated rationale for the bylaw) be made on the basis of presumed support or popularity.

Properties that have had a garden complaint (or any other MLS violation) levied against it, are publicly listed for a period of 2 years on Toronto’s website even before they are investigated and regardless of whether or not a violation actually exists.

This action is a direct contravention of the Municipal Freedom of Information and Protection of Privacy Act,
“A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information, (b) was compiled and is identifiable as part of an investigation of law, except to the extent that ! disclosure is necessary to prosecute the violation or to continue the investigation.”1

Directly informing neighbouring residents would extend this violation of privacy.

Since “exemptions” seek to absolve yards from aesthetic considerations, this process is blatantly unconstitutional. Rather than notifying neighbouring residents that an exemption is being sought, Toronto should initiate a process to notify complainants where no infraction exists; that is, where no health nor safety issues exist, and to educate them about the benefits that ecological gardens provide to their community and to their City. Extending such information to neighbouring residents would also be beneficial and perhaps encourage more residents to join the seemingly miscreant gardener in improving the environmental health of their community.

Recommendation 2 (revised): Revising the fees for Natural Gardens to include a re-inspection fee for the costs incurred by the City as a result of these re-inspections, in consultation with the General Manager, Parks, Forestry and Recreation.

The beneficiary of these garden re-inspections is the MLS department. In most cases, ecological gardeners are well informed and have gone to great lengths to select their purchases or gather appropriate seed, and to identify any species that may have subsequently voluntarily grown. Examining their choices is not the province of Toronto staff. Therefore, any charges levied for these inspection services should be to the MLS department that has failed to adequately train its workforce in order to avoid the need for further inspections.

Recommendation 3: The feasibility of amendments to existing bylaws to stipulate that Natural Garden Exemptions are only effective until such time that the property with the exemption changes ownership.

Currently “exemptions” are only considered valid until a subsequent complaint is received. In effect, yards could be subjected to continual inspections based not on the presence of infractions, but on the misconceptions of those lodging complaints and the lack of any mechanism to inform complainants that the yards in question are not health and safety risks.

Making these “exemptions” valid for the term of ownership might be seen as a progressive step only if “exemptions” were themselves a valid process. There is, moreover, a troubling aspect in that invalidating “exemptions” on the sale of the property would add a burden to the new owner who would then be required to apply for a permit to retain the landscaping style…in effect devaluing a property that is beneficial to Toronto.

Backyard Habitat certification provided by the Canadian Wildlife Service and general yard Habitat certification is offered by both the US-based National Wildlife Federation and by the Toronto-based Green Evolution Site. These certifications are often seen as enhancements to property value.

Decisions of the Ontario Provincial Court
Ontario’s Provincial courts have already heard two widely quoted cases: Bell vs Toronto (1996) and Counter vs Etobicoke (1998) which asserted the rights of Toronto residents to garden according to their beliefs on their own property and on adjacent city-owned lands (ie. the boulevard).

Bylaw 489, and other bylaws used in a similar manner, are in violation of Section 2B of the Canadian Charter of Rights and Freedoms which protects freedom of expression, and although the 1996 judgement relied on that section exclusively in his ruling, it is also presumed to be a violation of Section 3, which references freedom of conscious.

In ruling against the application of the bylaw’s predecessor in Bell vs Toronto (1996) Provincial Justice Fairgrieve stated:
“the objective of creating neat, conventionally pleasant yards did not warrant a complete denial of the right to express the values and beliefs reflected by naturalistic gardens. As between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly or inconsiderate of others sensibilities, some offence must be tolerated.”The current bylaw was enacted during the course of the trial and was also referenced by Justice Fairgrieve:

“I am not purporting to decide in this case whether the new bylaw, which is not in issue here, would survive Charter scrutiny, even if a constitutional challenge to it would presumably require the same kind of analysis that is required here and, I assume, lead to the same conclusion.”

In his ruling, Justice Fairgrieve also quoted expert witness James Hodgins: “the effect of a 20-cm. height restriction (which he described as “bizarre, incomprehensible and arbitrary”) would be
to “sterilize” and “devastate” naturalized gardens, both aesthetically and ecologically.”and noted that: “Mr. Wall <Toronto’s attorney> conceded that the City was not permitted to impose standards based on aesthetic preferences”

Justice Pitt (Counter vs Etobicoke) stated:
“¶ 29A municipality can exercise only those powers which are explicitly conferred by a provincial statute:
“since there appears to be no obvious correlation between a height restriction for plants and any health, safety or environmental hazards posed by them, I think the new by-law makes it even clearer that the City’s concern with weed control is primarily motivated by aesthetic considerations.”

“Moreover, to use the words of Justice Iacobucci in Ramsden, “the benefits of the bylaw are limited while the abrogation of the freedom is total; thus, proportionality between the effects and the objective has not been achieved”.

A Brief History of Weed BylawsA surplus of postwar chemicals led to the creation of the multimillion dollar lawn care industry. Further fueled by television programs featuring lawns as replacements for Victory (vegetable) gardens, this new industry also led to the creation of the most significant barrier to urban biodiversity–weed ordinances. Provincial weed ordinances (eg. the Ontario Weed Act) were created to protect specific crops. Municipal weed bylaws were created to protect the new status quo.

Early municipal ordinances were extremely subjective, most limiting the height of unspecified “weeds” and grass to an arbitrary eight inches. These were routinely struck done when challenged due to their vague and subjective nature. These same cases also proved false, claims of public health risks and of reduced property values posed by these gardens. (see Appendix C)2

In response to unwarranted harassment of these gardens, the US EPA maintains on its website a series of articles including a section titled: “Some Villages Still Don’t Get It – What to Do if Your Village is Enforcing its Weed Law against Your Natural Landscape.”3, presupposing that larger cities have more important activities to undertake than the harassment of their property owners.

In the early 1980’s, some municipalities attempted to create a garden permit system. Most of these were quickly abandoned as being overly cumbersome, counter to constitutional rights, and too expensive to administer.

By the 1990’s the permit system had largely been supplanted by setback requirements…restricting the height of vegetation at the front border to a specified height (usually 10-12 inches). This system can also be seen as arbitrary since there would appear to be little valid reason for restricting height below the levels required for safety purposes.

Toronto’s current bylaw 489 has been cited as an example of permissive ordinances in that it includes “broadly worded exceptions for natural landscapes, thereby expressly protecting them from municipal prosecution.”4 Unfortunately, enforcement officials and some Councillors have chosen to reinterpret that bylaw as more closely resembling the outmoded permit system by way of imposing their personal aesthetic values.

Many proponents of naturescaping, and of civic rights, feel that property disputes resulting from such design decisions should be managed through public education. This stance is gaining increasing support worldwide as the beneficial effects of gardening in concert with nature become self evident.

Supporting this view, numerous corporations have embraced such landscaping at their headquarters (Quaker Oats, General Mills, The Body Shop, Chrysler, Husky Oil). The US National Association of Home Builders has enacted a stringent certification system to protect natural areas in new developments including in one of the first developments, a system of natural swales replacing curbs and storm sewers.

The newest innovation to weed bylaws moves away from invalid attempts to enforce social conformity, instead focusing on protecting the local ecology by prohibiting specified invasive species. Illinois enacted one of the earliest examples; its Exotic Weed Act of 1992. Similar laws have been enacted across New England, and many western states.

Toronto’s Green Roof Program
Toronto has invested heavily in promoting “Green Roofs”. According to a list provided from a York University Study Appendix D), native species provide very suitable vegetation for the challenging environmental conditions of such projects. Similar plantings occurring at ground level currently may incur charges under bylaw 489.

“Natural” Gardening beyond Toronto
Cities around the world are embracing their natural heritage as a primary defence against the effects of climate change. Several drought-stricken Australian municipalities require that native plants be used in landscaping in order to reduce the strain on water supply and to reduce wild fire spread.

Boulevard Gardens
In San Francisco and other cities in California and neighbouring states, residents are offered tax incentives to grow plants other than grass on their boulevards as a means of reducing rain runoff into over-burdened storm sewers. Vancouver, Guelph, London, Oakville, Barrie and many other Canadian municipalities, actively encourage boulevard plantings as a means of improving the environment, reducing runoff, increasing social interactions, and calming traffic.

Cash for Grass IncentivesGrass lawns, among the largest crop by land area in North America, are harmful to the environment; requiring millions of gallons of treated water, chemical fertilizers, the use of power mowing equipment with the resulting noise and air pollution, and supplanting space that could host useful native species. Cash for Grass, programs offer tax rebates or cash inducements for replacing heavy water using turf grass, preferably with low water using native plants. These programs are becoming increasingly popular in the United States, particularly in drought-prone regions such as Texas, Arizona and California. Grass lawns have become one the largest crops in North America by land area, yet given the dearth of grazing animals where these lawns tend to occur, it is also the most useless. Diverse landscapes offering a variety of levels, such as trees, shrubs, and forbs absorb far more precipitation than lawn. Absorbing rainfall in-situ reduces the strain on constructed storm-water removal systems and helps to replenish groundwater levels.

Ontario’s Biodiversity Strategy“At the genetic level, diversity can provide living things with the potential to survive changes in their environment. Biodiversity contributes to our quality of life in ways that are more difficult to define. Ontario’s variety of landscapes and species is important to our cultural and artistic expression. For many Ontarians, getting outdoors and away from concrete and artificial light and noise is a way to renew the spirit. Seeing a butterfly or hearing a bird call in a city garden provides a moment of wonder and delight. Species and ecosystems have evolved over thousands and millions of years, and most were here prior to the arrival of humans. They have their own intrinsic value. This strategy is not about nature versus people. It is about living sustainably and respecting nature. Sustainable living is a priority and regarded as a responsibility by all sectors of society – government, business and industry, communities, institutions and organizations, and individual Ontarians. All Ontarians recognize that we must live within nature’s means – that the Earth does not have an endless capacity to tolerate and absorb the impacts of human activity. We place a high value on our natural heritage and the many benefits that it provides.

Canada was the first industrialized nation to ratify the 1992 UN Convention on Biological Diversity. Canada published the Canadian Biodiversity Strategy in 1995. Its vision is “a society that lives and develops as part of nature, values the diversity of life, takes no more than can be replenished and leaves to future generations a nurturing and dynamic world, rich in its biodiversity.” The cumulative impact of a series of seemingly small habitat losses can be significant. Ontarians care about the environment, and many participate in efforts to conserve biodiversity. There is growing alarm in the scientific community about climate change and the cumulative impact of the loss of biodiversity on a global scale. We must build a broad public understanding of and a commitment to biodiversity, and develop a variety of ways in which people can participate in maintaining our natural heritage as a legacy for future generations.Biodiversity conservation must be built into all aspects of land use planning.”6

The lines compiled above are reprinted from the Provincial planning document and hold just as true in Toronto as in the remainder of the Province and in Canada. The “seemingly small habitat” initiatives taken by some Toronto residents should be celebrated for their cumulatively global impact not reviled because t a small portion of neighbouring residents remain uniformed about the good that they do.

Community-based Food Production
There has been a resurgence of interest in urban agriculture as a means of providing a more secure food base and as a way of combating climate change by reducing transportation requirements. The “Victory Garden” movement of WWII was founded on similar principles. Several major hotels and restaurants have joined this trend by establishing rooftop herb gardens and (honey bee) apiaries.

This movement shares the motivation of eco-gardeners of increasing the productivity of urban lands.

Conclusion
It is a shame that many Toronto Councillors and city staff continue to maintain a low level of commitment to the health and growth of Toronto’s communities despite the numerous official policies and reports to the contrary.. The City has made some progress since the insular Toronto of the 1950’s…but apparently still has a very long row to hoe.

Biodiverse front yard gardens do not lower property values any more than any other type of diversity does. In today’s inflated market, there is very little a single home could do to accomplish that…other than ensuring that all neighbouring properties stagnate in a replica of decades past. Progressive communities now actively celebrate biodiversity by en- couraging front yard and boulevard plantings as a means of increasing social interaction, calming traffic, reducing storm water runoff, and generally enhancing the environment. Communities embracing such ideals tend to experience higher not lower property values.

In many jurisdictions, tax rebates are awarded to properties that eliminate grass lawns due to the high environmental and municipal costs associated with its care. Gardens that do not use municipally treated water save the City the cost of treating and transporting hundreds of gallons annually. Gardens that absorb virtually all precipitation onsite and eschew chemical additives ensure that no runoff pollutes local waterways and reduce strain on the City’s overburdened sewers. Not requiring power mowers spares the air and our eardrums. Songbirds, butterflies, bees and other pollinators are able to glean a varied and healthy diet from biodiverse, preferably native, plantings.

Full gardens, particularly those containing native plants, do not give rise to rats, fire, allergens, lower property values or any of the other misinformed viewpoints long since disproven in courtrooms around the world. In progressive communities, gardens; green roofs on the ground, are championed due to the enormous social, environmental, and cost benefits they provide. True, they don’t tend to look like Ozzie & Harriets garden…but we don’t live in Ozzie & Harriet’s world. Today we face global warming, loss of species, invasions of harmful alien species, aging water management infastructure, and a myriad of other issues that can be, at least partially, addressed by biodiverse gardens.

It’s unreasonable to expect everyone to love every yard at every moment of every year, but such gardens, given a chance to grow to their full potential, are increasingly vital to the well being not only of local communities, but globally.